DENISE LEBOEUF v. HARRINGTON MEMORIAL HOSPITAL GB WELLS HUMAN SERVICES CENTER & Others.

• Court: Massachusetts Appeals Court
• Decided: July 24, 2025
• Docket: 24-P-0653
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-653

DENISE LEBOEUF

vs.

HARRINGTON MEMORIAL HOSPITAL GB WELLS HUMAN SERVICES CENTER & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Denise Leboeuf, appeals from a final

judgment and dismissal pursuant to Mass. R. Civ. P. 33 (a) (6),

as appearing in 454 Mass. 1404 (2009), as well as an order

clarifying that judgment. We affirm.

The plaintiff filed her first amended complaint against the

defendants on October 28, 2020. On May 7, 2021, a judge allowed

1Kristina Quercia, Richard Listerud, Kelly Madden, Emily LaPrade, Martha Hauston, Norman Genest, Karen Receptionist, Megan Gaine, Lauren Bishop, Molly Hughes, Karissa Dysinger, Nicola Billett, Jane Doe, John Does #1-6, Joyce Rosenfeld, James C. Stephens, Courtney D'Elia, Michael Desmond, Erich Kudas, Pier Cutler, Emily Jean Vivlamore, David Dodge, Mayvel Burns, Alicia Audette, James MacDonald, Gyorgy Varai, Rebecca Peak, Jeanine Alton, Ann Beaudry, Tracy DiGregorio, Laurie Pytko, Lisa Bienia Kenton, Hilda Miller, Thomas Broffman, Christine Osborn, Colleen Smith, Anabelle Foley, and Donna Cordova. a motion to dismiss claims against all but nine of the

defendants. After the plaintiff repeatedly failed to respond to

interrogatories, on September 29, 2023, a judgment entered in

favor of four of the remaining nine defendants as a sanction for

noncompliance with discovery. See Mass. R. Civ. P. 33 (a) (4),

as appearing in 436 Mass. 1401 (2002) (when party fails to

answer interrogatories, "the interrogating party may file a

written application for entry of final judgment for relief or

dismissal"); Mass. R. Civ. P. 33 (a) (6) (after interrogating

party satisfies requirements for application, clerk "shall enter

an appropriate judgment"); Mass. R. Civ. P. 37 (b) (2) (C), as

amended, 390 Mass. 1208 (1984) (as sanction for noncompliance

with discovery judge may enter order "dismissing the action or

proceeding or any part thereof, or rendering a judgment by

default against the disobedient party").

On May 16, 2024, an order entered clarifying that the

judgment "had the effect of a final judgment as to all named

defendants." Additionally, the order dismissed claims against

"Jane Doe and John Does 1 through 4" because the plaintiff

failed to substitute named individuals. The plaintiff appealed

from the judgment entered on September 29, 2023, as well as the

clarifying order that entered on May 16, 2024, and both appeals

have been consolidated.

2 We discern no error in the orders where the plaintiff

declined opportunities to answer the interrogatories. The

defendants served interrogatories on the plaintiff on September

8, 2022, and the plaintiff did not respond. On March 9, 2023,

the defendants served a final request for answers to

interrogatories, and the plaintiff responded by e-mail and

overnight mail on April 19, 21, and 22, stating that she would

not provide answers. On April 27, the defendants filed a first

application for judgment and dismissal pursuant to rule 33, and

the plaintiff filed an opposition. Following a hearing, on June

15, 2023, a judge denied the defendants' rule 33 application,

concluded that the interrogatories were timely served, and

provided the plaintiff with a forty-five day extension of time

to respond to the interrogatories. After that deadline passed

with no answers, a second judge granted a further extension to

September 1, 2023, and warned that failure to respond could

result in "possible dismissal."

Despite multiple opportunities to provide answers to the

interrogatories, the plaintiff failed to respond by the new

deadline, and the second judge allowed the defendants' second

application for judgment and dismissal that is the subject of

this appeal. Given the plaintiff's repeated refusals to provide

answers to interrogatories after multiple extensions of time to

do so, we discern no abuse of discretion with respect to the

3 judgment that entered. See Clamp-All Corp. v. Foresta, 53 Mass.

App. Ct. 795, 805 (2002). See also Greenleaf v. Massachusetts

Bay Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986) (management

of case "committed to the sound discretion" of lower court

judge).

We also discern no error with respect to dismissal of the

John Doe and Jane Doe defendants for the additional reason

stated in the order. After nearly four years of litigation and

discovery opportunities, the plaintiff did not identify any of

the John Doe or Jane Doe defendants through an amended complaint

or provide proof of service. See G. L. c. 223, § 19 (fictitious

name may be used to initiate civil action so long as identity

disclosed in amended complaint and "sufficient service has been

made").

The remainder of the plaintiff's brief is devoted to

challenging various court orders that issued throughout the

course of the litigation (particularly the orders of May 8,

2021, and October 12, 2021, where the bulk of the claims were

dismissed). To the extent that these arguments may be raised on

appeal despite the entry of a judgment for the defendants as a

sanction for discovery noncompliance under rules 33 and 37 (an

issue we do not decide), we discern no error. See Patel v.

Martin, 481 Mass. 29, 31 (2018) ("[w]hen a final judgment enters

in a civil case in the Superior Court under Mass. R. Civ. P. 54,

4 as amended, 382 Mass. 829 [1981], a party aggrieved has the

right to appeal from the judgment . . . [and] various types of

interlocutory orders"). The claims here are conclusory and do

not cite any supporting legal authority that indicates an error

in the Superior Court proceedings. See Zora v. State Ethics

Comm'n, 415 Mass. 640, 642 n.3 (1993) ("bald assertions of

error, lacking legal argument and authority" do not advance

appellate argument); Mass. R. A. P. 16 (a) (9) (A), as appearing

in 481 Mass. 1628 (2019) (argument must contain "contentions of

the appellant with respect to the issues presented, and the

reasons therefor, with citations to the authorities and parts of

the record on which the appellant relies").

Moreover, we do not perceive the same "common theme" that

the plaintiff claims pervade all the judicial decisions in this

case -- that the arguments of the parties "were not considered

equally" by the judges. Our review of the record, including the

hearing transcripts, indicates that the various judges hearing

motions presented as polite, patient, impartial, and even

helpful as they answered the plaintiff's questions, explained

the proceedings, and tried to resolve disputes between the

plaintiff and counsel for the defendant. At these hearings, the

plaintiff repeatedly expressed her concern, as she does now,

that she had the impression she was not getting a "fair shot"

because the defendants seemed to prevail at every turn; however,

5 we generally do not assess the fairness of the proceedings based

on measuring impressions of a party or tallying the success or

failure of motions. See Passero v. Fitzsimmons, 92 Mass. App.

Ct. 76, 83 (2017), quoting Liteky v. United States, 510 U.S.

540, 555 (1994) ("judicial rulings alone almost never constitute

a valid basis for a bias or partiality motion"). Instead, we

examine the record and make an objective appraisal of whether

impartiality might reasonably be questioned. Even if the

plaintiff consistently failed to achieve success in various

arguments, we discern nothing in the record to suggest that she

was deprived of a free and independent judge in the proceedings.

See Matter of Curry, 450 Mass. 503, 525 n.30 (2008) (impressions

formed by judge during course of litigation do not constitute

source of bias).

Judgment entered September 29, 2023, affirmed.

Order entered May 16, 2024, affirmed.

By the Court (Singh, D'Angelo & Hodgens, JJ.2),

Clerk

Entered: July 24, 2025.

2 The panelists are listed in order of seniority.